Friday Links


We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope that you all are enjoying the beginning of the July 4th weekend. In honor of the occasion, our offices are closed today. Above, you’ll find the cover of Roy Rogers and the 4th of July Bandits #1. We’re not certain of the plot, but it seemed like a somewhat appropriate cover for today’s edition of Friday Links. Fear not, we’ll find a better one for tomorrow’s post! If the website ComicVine is to be believed, this comic book was first published in 1990, many decades after the time we would have thought it would have been.

We hope everyone has a safe holiday weekend!

Our favorite legally themed tweet of the week focuses upon iTunes:

GWB Calls For Removal Of Confederate Flag From South Carolina Statehouse Grounds

We have witnessed the tragic deaths of nine members of the Emanuel AME Church in Charleston. Gallivan, White, & Boyd, P.A. joins the citizens of our state in grieving for the victims and their families.

Gallivan, White, & Boyd, P.A. also stands together with Governor Haley, legislators, and community leaders in supporting the removal of the confederate flag from the statehouse grounds. The tragedy of these deaths will forever remain, but the removal of this divisive symbol from the statehouse grounds will promote harmony and stand as a legacy of remembrance of those slain.

Friday Links


As we’ve often noted, it’s difficult finding legally themed comic book covers after doing so for more than five years. But we just found a new one involving Nick Fury! Above, you’ll find the cover of Nick Fury #7, published way, way back in 1964. “If he’s found guilty, it’s the firing squad for Nick Fury!” the cover proclaims. We suspect that Nick Fury was acquitted, or pardoned, as the series did not end at issue seven. We may need to find a copy of this one to be certain, though.

Rest in peace, film composer James Horner. If you’ve never heard the score for Krull or Star Trek II: The Wrath of Khan, please do so immediately. Here’s a fitting tribute that we found online this week.

Don’t forget! You can follow Abnormal Use and Gallivan, White, & Boyd, P.A. on Twitter! You can find our profile here.

Speaking of Twitter, our favorite legal tweet of late comes from our editor:

Abnormal Use and The Food Truck and Brewery Law CLE

If you’re in Charlotte, North Carolina, tomorrow, Thursday, June 25, you might be interested to know that our editor, Jim Dedman, has planned another food truck and brewery law CLE for that afternoon. That’s right! It’s called “Mobile Food Trucks: Public Health Laws & Regulations and Changes Brewing in North Carolina.” That’s quite a doozy of a title, but if you want to learn about food truck and brewery regulations in North Carolina, here’s your chance! Get this: The program, which begins at 3:00 p.m., will take place at the Sugar Creek Brewery in Charlotte. That’s quite a place!

If you’re interested, or if you’d like to register, click here!

The event is sponsored by the Mecklenburg County Bar Association.

Friday Links


You’d be surprised at how difficult it becomes to find legally themed comic books covers after five years of scouring the Earth for them. Today, we present the cover of Checkmate #24, published not so long ago in 1990. “I accuse you of being the traitor!” exclaims a character we assume to be a heroic authority figure to another character we assume may not, actually, be a traitor. Maybe there’s a law school examination question here addressing defamation (or the evidence required to establish treason in a court of law). To be honest, we’re more curious about the menacing robot on the view screen and its role in the process.

By the way, don’t forget that our editor, Jim Dedman, is attending the North Carolina Bar Association Annual Meeting this weekend. If you see him, say hello! We know he’ll be tweeting using the hashtag #NCBAAM15, so investigate that, as well!

Our favorite tweet of late comes from Stacy Linn Moon:


We are incredibly saddened by the tragic news from Charleston. Our thoughts and prayers are with the members of the Emanuel African Methodist Episcopal Church and their families.

Abnormal Use At The NCBA Annual Meeting

As you might know, this week heralds the arrival of the North Carolina Bar Association Annual Meeting. This year, it’s in Asheville, North Carolina, a fine place indeed.

You might not know that we here at Abnormal Use and Gallivan, White, & Boyd, P.A. will be making an appearance at the Annual Meeting. Our editor, Jim Dedman, will be there. In fact, on Friday afternoon, he’ll be presenting a CLE on brewery law. The program, planned by Jim, is called “Insights to a Great Brew: From ABC Regulations to Branding and More.” It features a number of celebrated beer and hospitality lawyers. Don’t miss it if you’re in town for the convention, as there’s still time to register. For more on the program (including individual topics and speakers), click here.

Oh, and don’t forget to follow the action on Twitter via the hashtag #NCBAAM15.

Washington Court Of Appeals Rejects Argument That Facebook Post Not Authentic

Rarely do we write about criminal cases on this site, but we did feel it appropriate to mention a new case in which the defendant challenged his burglary and assault convictions, in part, on the grounds that his lawyer did not object to the admission of certain Facebook posts into evidence. State v. Fawver, No. 32271-8-III (Wash. Ct. App. June 9, 2015 (unpublished).

The facts were these:

The incident in question arose after Mr. Fawver was forcefully thrown out of a New Year’s Party at the residence of Christopher Pierce in Deer Park. Pierce punched and pushed Fawver out of the event in the early hours of January 1, 2013. Fawver left on foot and texted a friend that he had been “jumped” at the party.
Three friends arrived in a truck to pick up Fawver; they were followed in another car by two other men. The six men drove in the two vehicles back to Pierce’s residence, arriving around 3:00 a.m. Several of the men, armed with baseball bats, entered the residence and a melee ensued. Many of the partygoers fought back against the invaders. Two of them identified Fawver as being among the group wielding baseball bats.

A detective later found a Facebook post on the page of one “Corey Fawner” in which the owner of the account posted the following status update: “Wow What a fun Night ppl [people] in dp [Deer Park] are not bad as they think they are.” The defendant was, of course, convicted.

On appeal, the defendant raised the issue of ineffective assistance of counsel because his attorney failed to object to the Facebook post.

Finding the the defendant’s argument that the Facebook post was not properly authenticated to be “questionable,” the court noted as follows:

There are at least as many ways to try a case as there are trial attorneys. Skilled counsel often do not raise objections to the form in which otherwise admissible evidence is entered. In most instances, it will be nigh impossible to establish that counsel erred by failing to make an objection that, if successfully lodged, would simply require the opposing party to offer the evidence in a different manner. That is the situation here. Mr. Fawver does not argue that the posting could never be authenticated; he only argues that this authentication was inadequate. Under the circumstances, it is doubtful that counsel’s decision to not object was such an egregious decision that it constitutes a failure to live up to the standards of the profession.
Nonetheless, even if this type of behavior could constitute error under Strickland, it does not do so here. Mr. Fawver has identified no Washington authority, nor have we, that sets forth authentication requirements for Facebook postings. On that basis alone, it is difficult to conclude that counsel erred since there is no governing authority to establish a failure to adhere to professional norms.

However, the court also went to some length to describe how the Facebook post, or “screen-grab” as it called it, was authenticated:

Given the unique comment posted so close in time to the assault, the fact that a friend of Mr. Fawver recognized it as his Facebook page, the name on the post matched Mr. Corey Fawver’s name, the picture was identified as the picture of Mr. Fawver, and the fact that Facebook is widely known to generally be password protected, the Facebook post appears to have been properly authenticated.

Keep that in mind, folks. Most of those authentication components would be the same regardless of whether the evidence was digital in nature. The circumstances surrounding the post, the manner in which the detective was led to it, and the facts contained therein all served to authenticate it.

Remember that when you’re litigating these issues in civil cases.


Friday Links


Rest in peace, Vincent Bugliosi, famed prosecutor of Charles Manson. Many years ago, we read his book, “Helter Skelter,” the account of the Manson Family trial. Of course, it is a frightful tale. But it was the story of the investigation into the murders and the resulting trial which sparked our interest in becoming a lawyer.

Our editor, Jim Dedman, has planned another CLE, this one dedicated to the law of food trucks and breweries. Taking place in Charlotte, North Carolina on Thursday, June 25, its official title is “Mobile Food Trucks: Public Health Laws & Regulations and Changes Brewing in North Carolina.” You can register here.

You may want to check out Robert Ambrogi’s recent article, “How Legal Blogging Has Changed Over the Decade.” That’s a lot of blogging.

Our favorite tweet of late:

Revisiting Asbestos Plaintiff And Fact Witness Depositions

As you know, we here at Abnormal Use often submit content to other publications, and 2015 is no exception. Our editor, Jim Dedman, recently had an article entitled “Revisiting Asbestos Plaintiff and Fact Witness Depositions” published in DRI’s For the Defense magazine. Here’s the first paragraph:

Over the years, many defense attorneys have found themselves playing a part in a plaintiff’s or the plaintiff’s coworker’s deposition in an asbestos or other toxic tort case. Whether a deponent is a plaintiff claiming exposure to asbestos, a personal representative of the estate of an individual who allegedly died as a result of such exposure, or a former co-worker of a plaintiff or a decedent, such depositions are often different than typical depositions, if only due to the sheer number of attorneys in the room. It is not uncommon for a dozen—or dozens—of defense attorneys to be present representing numerous manufacturers of products alleged to have contained asbestos. In light of the number of competing interests, asbestos depositions can sometimes veer into unexpected territory, and as a result, important factual information and deposition basics may be overlooked. Considering the potential traps for the unwary, attorneys can sometimes lose sight of the forest for the trees. To guard against such a risk, defense attorneys must not forget the basics of deposition taking when confronted with an asbestos deposition. This lesson is particularly important for young lawyers, many of whom are dispatched such depositions, who may see many cases settle and few proceed to trial.

You can read the rest of the article here.